Griffin v. Eli Lilly and Company

CourtDistrict Court, D. New Jersey
DecidedAugust 4, 2023
Docket2:23-cv-04239
StatusUnknown

This text of Griffin v. Eli Lilly and Company (Griffin v. Eli Lilly and Company) is published on Counsel Stack Legal Research, covering District Court, D. New Jersey primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Griffin v. Eli Lilly and Company, (D.N.J. 2023).

Opinion

UNITED STATES JUDICIAL PANEL on MULTIDISTRICT LITIGATION IN RE: INSULIN PRICING LITIGATION MDL No. 3080

TRANSFER ORDER Before the Panel:∗ The litigation before us concerns an alleged scheme between insulin manufacturers and pharmacy benefit managers (“PBMs”) to artificially and fraudulently inflate the price of insulin and other diabetes medications. The principal players in the alleged scheme are insulin manufacturers Eli Lilly and Company, Novo Nordisk, Inc., and Sanofi-Aventis U.S., LLC, and three PBMs – CVS Caremark, Express Scripts, Optum Rx, and their various corporate affiliates. From 2017 to 2021, the litigation over these issues was concentrated largely in the District of New Jersey.1 In the last two years, federal civil actions involving the alleged insulin pricing scheme were filed by Arkansas, Illinois, Mississippi, Montana, and Kansas (“Moving State Plaintiffs”), as well as other state and local government plaintiffs, in a number of other districts. Against this backdrop, the Moving State Plaintiffs have filed a motion under 28 U.S.C. § 1407 to centralize their five actions, as listed on Schedule A, in the Southern District of Mississippi but excluding the four New Jersey Insulin Pricing Actions.2 Alternatively, they request the District of New Jersey. Since the filing of the motion, the Panel has been notified of eight related actions pending in six additional districts.3 At oral argument, movants stated that they support centralization of potential tag-along actions filed by other governmental plaintiffs. ∗ Judge David C. Norton did not participate in the decision of this matter. Additionally, one or more Panel members who could be members of the putative classes in the related actions have renounced their participation in these classes and participated in this decision. 1 See In re Insulin Pricing Litig., No. 17-00699 (D.N.J.) (“Indirect Purchaser Consumer Action”); MSP Recovery Claims, Series, LLC v. Sanofi Aventis U.S. LLC, No. 18-02211 (D.N.J.); Minnesota v. Sanofi-Aventis U.S. LLC, No. 18-14999 (D.N.J.); and In re Direct Purchaser Insulin Pricing Litig., No. 20-3426 (D.N.J.) (together, “the New Jersey Insulin Pricing Actions”). 2 The actions on the motion assert claims for unjust enrichment and violation of the state plaintiffs’ respective state consumer protection statutes. Four of the five actions also assert a claim for civil conspiracy. None asserts antitrust claims. 3 Six are actions by local governmental entities (Albany County, Lake County, Jackson County, County of Monmouth, City of Cleveland, and Bossier Parish); one is by a group of independent All responding defendants oppose centralization. If the actions are centralized over their objections, defendants Eli Lilly, Novo Nordisk, and Sanofi-Aventis request the District of New Jersey and, alternatively, are unopposed to the District of Kansas, while the PBM defendants4 request the District of Kansas in the first instance. The PBM defendants also assert that, if an MDL is created, it should include all state and county insulin pricing actions. Responding plaintiffs take varying positions. Plaintiffs in four potential tag-along actions (Albany County, Lake County, County of Monmouth, and City of Cleveland) support centralization in the District of New Jersey. Plaintiffs in two other potential tag-along actions (Jackson County and Sistema Integrado) oppose centralization and, in the alternative, request exclusion of their actions. Plaintiff in the Louisiana potential tag-along action also requests exclusion of its action, though taking no position on centralization of the other actions. If the actions are centralized, opposing plaintiffs variously suggest the Western District of Missouri, the Southern District of Mississippi, and the District of Puerto Rico as transferee district.5 Plaintiffs in the New Jersey Indirect Purchaser Consumer Action oppose centralization and, alternatively, request the District of New Jersey as transferee district. The parties opposing centralization primarily argue that (1) state-specific issues will make centralization inefficient; and (2) informal coordination is a preferable alternative to centralization. With respect to state-specific issues, the parties assert that the state law claims in all actions on the motion and most of the potential tag-along actions differ significantly, and factual differences will arise from the involvement of distinct state governmental agencies and state-funded health insurance plans and programs. These arguments are unpersuasive. First, four of the five actions on the motion allege the same civil conspiracy claim, albeit under different state laws. And the fifth action alleges the existence of the same conspiracy, though not asserting conspiracy as a cause of action. Considering that the alleged conspiracy to fraudulently raise insulin prices is at the heart of all actions, the alleged factual and legal differences implicated by the involvement of distinct state laws and programs do not preclude centralization. We often have held that the assertion of different legal claims or additional facts is not significant where, as here, the actions arise from a common factual core. See In re Auto Body Shop Antitrust Litig., 37 F. Supp. 3d 1388, 1390-91 & n.5 (J.P.M.L. 2014). Moreover, it is “within the very nature of coordinated or consolidated pretrial proceedings in multidistrict litigation for the transferee judge to be called upon to apply physician associations (Sistema Integrado); and one is a state parens patriae action (Louisiana). These and any other related actions are potential tag-along actions. See Panel Rules 1.1(h), 7.1 and 7.2. We also were notified of two other related actions (California and Puerto Rico), which recently were remanded to state court and thus are no longer before us. 4 The responding PBM defendants are CVS Health Corp., CaremarkPCS Health, LLC, Caremark, LLC, Caremark Rx, LLC, CVS Pharmacy, Inc. (together, “CVS Caremark”), Evernorth Health, Inc. (formerly Express Scripts Holding Co.), Express Scripts, Inc., Express Scripts Administrators, LLC, ESI Mail Pharmacy Service, Inc. Express Scripts Pharmacy, Inc., Medco Health Solutions, Inc. (together, “Express Scripts”), and OptumRx, Inc. 5 Plaintiffs in the California and Puerto Rico related actions filed briefs opposing centralization before their actions were remanded to state court. California also suggested that, even if its action proceeds separately in state court, the Central District of California should be the transferee district. the law of more than one state.” See In re CVS Caremark Corp. Wage and Hour Emp’t Practices Litig., 684 F. Supp. 2d 1377, 1378 (J.P.M.L. 2010). We have considered the parties’ arguments in support of informal coordination and find, on this record, that it does not provide a workable solution. The various arguments in support of informal coordination were premised on the involvement of few actions and few counsel in the litigation – with many parties noting that the state plaintiffs in all five actions on the motion are represented by the same outside counsel. But there are presently at least eight potential tag-along actions involving five additional groups of non-overlapping plaintiffs’ counsel, not counting the plaintiffs’ counsel in the New Jersey Insulin Pricing Actions. Additionally, each manufacturer and PBM group has different national lead counsel – six different defense counsel in total. And including potential tag-along actions, the actions are now pending in eleven districts.

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Related

In Re CVS Caremark Corp. Wage & Hour Employment Practices Litigation
684 F. Supp. 2d 1377 (Judicial Panel on Multidistrict Litigation, 2010)
In re Auto Body Shop Antitrust Litigation
37 F. Supp. 3d 1388 (Judicial Panel on Multidistrict Litigation, 2014)

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Bluebook (online)
Griffin v. Eli Lilly and Company, Counsel Stack Legal Research, https://law.counselstack.com/opinion/griffin-v-eli-lilly-and-company-njd-2023.